In its December 7, 2012 opinion, the US District Court for the Middle District of Pennsylvania in In re: Chocolate Confectionary Antitrust Litigation determined that an analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc. was required at the class certification stage to determine the admissibility of certain expert opinions. After determining that the experts were sufficiently reliable and fit, the court evaluated and granted the plaintiffs' motion for class certification. This update is limited to the evidentiary issue of whether a court must perform a Daubert analysis at the class certification stage of litigation.

In In re: Chocolate, a multidistrict price-fixing antitrust case, the defendants moved in limine to exclude the opinions of two of the plaintiffs' experts. The experts' opinions were critical to whether the plaintiffs could show that issues common to the proposed class members predominated over issues affecting individual class members, an element required for class certification under Federal Rules of Civil Procedure (FRCP) 23(b)(3). In considering whether to exclude the experts' opinions, the court noted that, at the class certification stage, it must conduct a rigorous analysis of all relevant evidence to determine whether the elements of FRCP 23 are met. Class certification is only appropriate if the plaintiffs prove each element of FRCP 23 by a preponderance of the evidence.

The court considered whether an analysis of the plaintiffs' experts under Federal Rules of Evidence (FRE) 702 and Daubert was required at the class certification stage. The application of Daubert at the class certification stage is an open question in the US Court of Appeals for the Third Circuit. The court noted that the plaintiffs' reliance on the Third Circuit's earlier decision in Behrend v. Comcast Corp., which is currently before the Supreme Court, is misplaced because that opinion does not specifically address whether Daubert applies to expert testimony proffered at the class certification stage.

The court concluded that a Daubert analysis was appropriate at the class certification stage for the court to be able to conduct the requisite rigorous analysis of whether the plaintiff has satisfied the requirements of FRCP 23.